At page 1240 Confirming disciplinary finding based on evidence and conduct8 citing cases“Furthermore, we reject petitioner’s claim that he was improperly removed from the hearing given that he continued to engage in disruptive and uncooperative behavior despite the Hearing Officer’s warnings that he would be expelled from the hearing if such conduct persisted (see Matter of Blocker v F…”
- Matter of Baxter v. Annucci, 2022 NY Slip Op 04773 (N.Y. App. Div. 3d Dep't 2022).publishedPetitioner, despite prior warnings, continued to be uncooperative and unresponsive to the Hearing Officer's questions, which interfered with the hearing process ( see Matter of Alsaifullah v Fischer , 118 AD3d 1239, 1240 [2014], lv denied…
- Matter of Clyde v. Nelson, 2018 NY Slip Op 8402 (N.Y. App. Div. 3d Dep't 2018).publishedWe reject petitioner's contention that he was improperly removed from the hearing, as the record reflects that he failed to comply with respondent's repeated warnings to stop being disruptive by trying to get out of his chair or he would b…
- Matter of Bermudez v. Griffin, 142 A.D.3d 1203 (N.Y. App. Div. 3d Dep't 2016).publishedThe detailed misbehavior report and related documentation, together with the testimony of the correction officers who authored and endorsed the misbehavior report, provide substantial evidence supporting the determination of guilt (see Mat…
- Matter of Toliver v. New York State Dep't of Corr. & Cmty. Supervision, 127 A.D.3d 1536 (N.Y. App. Div. 3d Dep't 2015).publishedAfter the hearing resumed, petitioner again became agitated and uncooperative, despite the Hearing Officer’s warning that he would be expelled from the hearing if his conduct persisted (see Matter of Alsaifullah v Fischer, 118 AD3d 1239, 1…
- Matter of Douglas v. Fischer, 126 A.D.3d 1244 (N.Y. App. Div. 3d Dep't 2015).publishedThe misbehavior report, related documentation and testimony of correction officers involved in the incident provide substantial evidence supporting the determination of guilt (see Matter of Alsaifullah v Fischer, 118 AD3d 1239, 1240 [2014]…
- Matter of Casey v. Prack, 124 A.D.3d 1110 (N.Y. App. Div. 3d Dep't 2015).publishedThe misbehavior report and related documentation, as well as the testimony of the correction officer who was assaulted, provide substantial evidence to support the determination of guilt (see Matter of Alsaifullah v Fischer, 118 AD3d 1239,…
- Matter of McCall v. Annucci, 123 A.D.3d 1267 (N.Y. App. Div. 3d Dep't 2014).publishedThe misbehavior report, documentary evidence and testimony of the correction officer who was involved in the altercation provide substantial evidence to support the determination of guilt (see Matter of Alsaifullah v Fischer, 118 AD3d 1239…
- Matter of Garcia v. Prack, 128 A.D.3d 1244 (N.Y. App. Div. 3d Dep't 2015).publishedWe are unpersuaded by petitioner’s contention that he was improperly removed from the hearing where, after being told to stop talking, he continued to engage in disruptive and argumentative behavior with a correction officer in the hearing…
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
As petitioner approached the entrance to the facility gym, the alarm on the metal detector sounded and the correction officer who was monitoring it proceeded to conduct a pat frisk of petitioner and scanned him with a hand-held metal detector. During this process, the metal detector’s alarm activated as the officer passed it over petitioner’s right shoe, at which point petitioner struck the officer and a physical altercation ensued. Petitioner was eventually brought under control with the assistance of staff and a metal shank with a cloth handle was recovered from his right shoe. As a result, he was charged in a misbehavior report with possessing a weapon, assaulting staff, creating a disturbance, engaging in violent conduct and interfer[*1240] ing with an employee. Following a tier III disciplinary hearing, he was found guilty of all of the charges except for creating a disturbance. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and related documentation, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of Quezada v Fischer, 113 AD3d 1004, 1004 [2014]; Matter of Moreno v Fischer, 100 AD3d 1167, 1167 [2012]). Although petitioner maintained that he was assaulted by the monitoring officer, that this officer planted the weapon and that the misbehavior report was written in retaliation for a grievance he had filed against the officer, his testimony presented credibility issues for the Hearing Officer to resolve (see Matter of Quezada v Fischer, 113 AD3d at 1004; Matter of Peoples v Bezio, 94 AD3d 1299, 1300 [2012]). Furthermore, we reject petitioner’s claim that he was improperly removed from the hearing given that he continued to engage in disruptive and uncooperative behavior despite the Hearing Officer’s warnings that he would be expelled from the hearing if such conduct persisted (see Matter of Blocker v Fischer, 107 AD3d 1285, 1286 [2013]; Matter of Huggins v Noeth, 106 AD3d 1351, 1352 [2013]). We have considered petitioner’s remaining contentions and find them either unpreserved for our review or lacking in merit.
Peters, PJ., Rose, Egan Jr., Lynch and Clark, JJ., concur.Adjudged that the determination is confirmed, without costs, and petition dismissed.